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Military Commission Pre-Trial Hearings for Alleged 9/11 “Plotters” Focus on Gitmo Conditions

Victims and families of victims of 9-11 attended last week’s hearings.

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Khalid Sheikh Mohammed, the suspected “mastermind” of the 9/11 attacks, is being tried with alleged co-conspirators Walid bin Attash, Ramzi bin al-Shibh, Ali Abd al-Aziz Ali (Ammar al-Baluchi) and Mustafa Ahmed al-Hawsawi. The eight charges leveled against them are conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism.

Victims and families of victims of 9/11 attended last week’s hearings. In a press conference a day before the first day of pretrial hearings, they shared their stories. Joe Torrillo, a retired New York City firefighter and first-responder who rushed to rescue people on that fateful day, gave a riveting account of how he survived being crushed by rubble. While the families of the USS Cole bombing victims on the whole support execution for Abd al-Rahim al-Nashiri, the suspected mastermind of the USS Cole bombing in Yemen in 2000, there was far less support for executing the alleged 9/11 plotters. “I would hope that they wouldn’t be executed,” Torrillo said. “Two wrongs have never made a right.”

“I would like for them to live long enough to maybe one day, wake up, and admit what they did was wrong,” he said.

There were also disagreements as to whether the men should be tried in a military commission at Guantánamo or in a federal criminal court on US soil. Torrillo and Linda Gay, who lost her husband on Flight 11, favored prosecuting the suspects in a military commission at Guantánamo. In contrast, Rita Lasar, who lost her brother Abraham Zelmanowitz, and Glenn Morgan, who lost his father Richard (also a firefighter), supported trying the five men in a federal court on American soil. “We have a proven system and it works,” said Morgan.

As with the al-Nashiri hearings, multiple issues were discussed in the 9/11 case. They included monitoring of attorney-client communications, searching of defendants’ legal materials for contraband and confiscation thereof, what constitutes contraband (sometimes it included political materials relevant to the defense’s case, such as those relating to Islamic extremism and al-Qaeda), defense not getting enough time to seek mitigation and the right of the accused to attend closed sessions during pretrial hearings.

Gitmo-Style Surveillance

Similar to Richard Kammen’s experience in the al-Nashiri case, defense attorneys working on this commission experienced electronic monitoring via hidden listening devices of attorney-client meetings. US Air Force Lt. Col. Sterling Thomas, a defense attorney for Ammar al-Baluchi, said that early this year his defense team learned of “listening devices in the meeting spaces where we meet with our clients.”

US Navy Commander Walter Ruiz, the defense attorney for Mustafa al-Hawsawi, experienced the same thing. His team has had “issues” and “questions” about “monitoring.” “I thought that it was incredibly difficult,” said Ruiz, “for a judge to ask us to prove to him that we were being monitored by an agency whose sole purpose is to avoid being detected.”

“I’m a lawyer. I’m legally trained. But I’m not a counter-surveillance operative. I have my limits,” Ruiz quipped. His team showed the judge “that there were things that were supposed to have been smoke detectors that were actually microphones. That there were cameras that had audio and video recording capability. That the huts that were wired for recording and for sound were the ones that we were getting put into for our meetings … That’s pretty egregious.”

Monitoring of attorney-client meetings is “something that does not occur … in an Article 3 [federal] court,” Thomas pointed out. There is a possible reason for this. Thomas added, “[H]ere we are on an island where the purpose is intelligence collection. And we’re being told, ‘You can only use this old hut’ that was used for intelligence collection.”

In the al-Nashiri hearing, Guantánamo prison officials (including Army Col. John Bogdan, the current Guantánamo prison commander/warden) during cross-examination claimed ignorance of the surveillance, blamed the FBI for installing the equipment, and said that while such technology had the “capability” to listen and record meetings, they promised that they were not used for such purposes. It was the government’s typical response to critical questions on national security issues: “Trust us.

ICRC’s Confidentiality

One key issue discussed was the International Committee of the Red Cross’s (ICRC) privilege of confidentiality, which defense attorneys are concerned is blocking their access to important information. Matthew MacLean, a private lawyer representing the ICRC, argued in court that the government should respect the organization’s “privilege of nondisclosure of its confidential dialogue with the United States.” MacLean said that the ICRC needs confidentiality in order to get access to dangerous and difficult-to-reach environments, which is crucial for its work. With the ICRC’s consent, that privilege can be waived. In an interview, MacLean did say that the ICRC was hoping to achieve a consultation with the defense to resolve such matters.

Ruiz objected. While acknowledging the ICRC’s important work, he said, “[T]he information contained within those ICRC reports is information that could be extremely useful in the presentation of our case.” Ruiz said this is not about having the ICRC testify, as the organization suggested, but is rather a request it release relevant documents. The information in question is not classified. Since the case involves the death penalty, disclosure is necessary, Ruiz contends. The other defense attorneys argued in favor of disclosure, as well.

On the other hand, the prosecution defended ICRC’s confidentiality privilege and opposed the defense motions against it. Chief Prosecutor Brig. Gen. Mark Martins of the US Army (who is also prosecuting the al-Nashiri case), said that the ICRC possesses “very important, sensitive materials that need to be protected.”

In an interview, Ruiz explained that the information ICRC may have is “huge” and very important to his client’s case. He referenced a report by the Constitution Project’s Task Force on Detainee Treatment, which found that, after the revelations about abuses at Abu Ghraib prison, there was an “intense debate” within the ICRC “about its role and under what circumstances it should speak out publicly in such situations more frequently, despite a strong tradition of not doing so.”

Throughout the ICRC’s history, “while its representatives generally have free access to detention conditions, they do no publicly disseminate any critical judgments they may make about humanitarian deficiencies.”

“Instead,” the report continues, “the Red Cross usually delivers its complaints about treatment privately to the involved government. It is, in effect, a trade-off: access for an agreement to keep findings confidential.” In some situations, the ICRC will publicize its findings only if the government in question “remains unresponsive to requests to make improvements.”

As ICRC officials repeatedly visited Guantánamo between 2002 and 2005, they “were forced to resort to suggesting publicly there were problems at Guantánamo.” This “resulted in intense internal debates over how to deal with the US government.” ICRC officials who regularly visited Guantánamo, did on-the-ground research and “had a difficult, even at times hostile relationship with authorities who ran the detention center there” split with other, higher-level bureaucrats closer to Washington elites. The Constitution Project’s report described “a more formal diplomatic relationship between the senior officials of the Red Cross in Geneva and administration officials.” The higher-level bureaucrats won the “internal ICRC debate as to whether to raise the level of public criticism of the US treatment of Guantánamo prisoners.”

“If I know that there’s this, at least, this information out there that says that some of the ICRC were so offended by what they found at Guantánamo, then I have to think that what was offensive was some of the treatment, some of the conditions, and some of the things that they considered inadequate,” said Ruiz. “Therefore, as an advocate in the defense, I have to think that’s something that I need to know.”

Gabor Rona, the current international legal director at Human Rights First, handled ICRC’s confidentiality file while he was in their legal division from 1999 to 2005. In an email interview with Truthout, he said that, “the ICRC is super-sensitive to the sensibilities of its largest single donor, the US, and that affects ICRC policy toward Guantánamo.” Rona added, however, that “the ICRC is often the only thing that stands between prisoners and torture, and its confidential working method is critical to its access to prisoners.” If the ICRC “starts making exceptions to its policy not to testify,” he wrote, “the ICRC may lose the access to prisoners upon which their protection against torture depends.”

In the end, no ruling was issued on the defense motions dealing with ICRC confidentiality.

Hunger Strike and Force-Feeding

One issue that was not discussed in the hearings but has steadily made headlines was the force-feeding of detainees on hunger strike. Ruiz filed a motion calling for Joint Task Force-Guantánamo (JTF-GTMO), which runs the detention camps, to end its practice of force-feeding. However, it was not put on the docket. The judge has yet to add it. Prosecutors oppose the motion. Brig. Gen. Martins said the issue is “not ripe.” He argued that there is no evidence that al-Hawsawi, Ruiz’s client, is being force-fed, thereby making the motion unnecessary.

So far, of the 166 detainees at Guantánamo (86 of whom are cleared for release), 104 are on hunger strike; 44 are being force-fed. Force-feeding involves strapping a detainee to a chair and passing a tube through his nose and down into his stomach to feed him Ensure, a liquid nutritional supplement. The practice has been condemned as being inhumane, a violation of medical ethics, or a form of torture by doctors and human rights advocates from around the world.

In a Thursday press conference, US Navy Captain Robert Durand, the Guantánamo prison spokesman, answered questions about the hunger strike. He delineated how JTF counts hunger strikers. If a detainee eats fewer than nine consecutive meals, then he is counted as going on hunger strike. What counts as a meal is rather arbitrary. It’s based on a “point system” of “how much food they’re taking,” according to Durand. “Sometimes,” he said, “it is a best guess.” When given a plate, a detainee must eat a “substantial amount of food” to not count as foregoing the meal, but what counts as “substantial” is unclear. Despite Guantánamo’s long record of torture, abuse, indefinite detention and harsh measures to break the hunger strike, Durand incessantly insisted with a straight face that JTF is trying to “preserve life” at the camps.

When asked why the detainees were hunger striking, Durand responded, “They haven’t given us anything that we can address here in Guantánamo.” While he admitted that “detained people don’t like to be detained,” he also suggested that their main concern was “lack of attention.” Durand did not specify how their treatment and conditions under indefinite detention would prompt over 100 detainees to go on hunger strike.

On April 14, 2013, The New York Times published a statement by Samir Naji al-Hasan Moqbel, a Yemeni detainee at Guantánamo. He said, “I will not eat until they restore my dignity.” Based on a friend’s bad advice, Moqbel traveled to Afghanistan to work, but later found that there was none. He wrote that when the United States invaded Afghanistan in 2001: “I fled to Pakistan like everyone else. The Pakistanis arrested me when I asked to see someone from the Yemeni Embassy. I was then sent to Kandahar, and put on the first plane to Gitmo,” where he has been detained since 2002.

This story is not unusual. Many, if not most, detainees were snatched under similar circumstances. In many cases, informants, in return for a bounty or to settle a score with someone, would tell the Yemeni or Pakistani authorities that someone is a “terrorist.” Those authorities then apprehend that person and send him to be interrogated by the United States, with the frequent result of that person being sent to a detention center like Guantánamo. This too-common story should dispelany lingering idea that Guantánamo detainees are “the worst of the worst.”

Moqbel wrote that being force fed “made me feel like throwing up.”

“I wanted to vomit, but I couldn’t,” he wrote. “There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone.” Medical staff at Guantánamo have continued to force-feed Moqbel, despite his refusal. What Moqbel wants is clear: “All I want is to see my family again and to start a family of my own.” He added: “The situation is desperate now. All of the detainees here are suffering deeply … And there is no end in sight to our imprisonment. Denying ourselves food and risking death every day is the choice we have made.”

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